Caye v. Caye
| Decision Date | 02 November 1949 |
| Docket Number | 3573. |
| Citation | 211 P.2d 252,66 Nev. 78 |
| Parties | CAYE v. CAYE. |
| Court | Nevada Supreme Court |
Clel Georgetta and Howard W. Babcock, both of Reno for appellant.
Joseph P. Haller, of Reno, for respondent.
Respondent instituted suit against appellant in the District Court of the Second Judicial District, in and for the County of Washoe, to obtain a decree dissolving the bonds of matrimony. Appellant has appealed from an adverse judgment and from an order denying her motion for a new trial.
The respondent, in his complaint filed on March 8, 1948, alleged that 'since the marriage plaintiff and defendant have lived separate and apart for more than three consecutive years, without cohabitation, immediately preceding the commencement of this action'. This the appellant denied in her answer.
The evidence establishes that respondent and appellant were married in Detroit, Michigan, on the 30th day of April 1937, and lived together for a period of approximately six years. During the major part of that time the husband was employed by the Caye Construction Company. The husband entered the United States Navy in June, 1943, and respondent and appellant continued to live together as man and wife until August, 1943, when the husband was sent to an over-seas station in Trinidad. After he left the United States, the appellant returned to reside at the home of the parties, and remained there until November, 1943, when she moved to Washington, D. C., to work for the United States government.
After the respondent had been stationed in Trinidad for approximately a year, he returned to the United States in August of 1944, and was at that time given leave for twenty to thirty days. After this leave the husband was sent to the Naval Station at Norfolk, Virginia, for re-assignment, and while there received orders transferring him to duty in the Pacific area. This occurred early in the month of November, 1944. Before reporting to his new assignment in the Pacific area, the husband was given several days' leave. It is uncontradicted that while stationed at Norfolk, Virginia, the respondent wrote his wife a letter stating that he desired a divorce. The testimony of the parties is in conflict as to whether his attitude persisted after his re-assignment and during the few days' leave before reporting for duty in the Pacific area. Briefly, it was the testimony of the respondent that he continued to impress upon the appellant his desire for a divorce, and that certain preliminary arrangements were made with a firm of attorneys. It was the appellant's testimony that prior to his departure for the Pacific, the parties were reconciled and that, in fact, no separation occurred until the respondent's return from the Pacific area about a year later.
The appellant has assigned as error the granting of a decree of divorce upon the ground alleged in respondent's complaint. The appellant maintains that for the period of one year, while respondent was on duty with the United States Navy in the
Pacific, the parties were compelled to live apart. This statement of the assignment assumes that the respondent and appellant had not separated prior to respondent's departure for the Pacific Area. But if it was unnecessary under the statute to prove a separation occurred prior to respondent's reporting for duty in the Pacific Area, we can dispose of the question by ascertaining whether the prescribed period elapsed. Thus for the first time in this Court it has become necessary to construe the statute providing for this ground for divorce, as to that point.
Appellant's interpretation of the Statute providing for this cause for divorce (Stats.1931, c. 111, p. 180, as amended, Stats.1939 c. 23, p. 16) is that to make out a case under the statute the plaintiff, in addition to the other proof required by the statute, must show that the separation of the parties resulted from the voluntary act of the parties, with the intent to bring to an end the marital relation. Appellant proposes this construction of the statute as preferable to the view that the trial judge may grant a divorce upon this ground when a showing has been made that the parties lived apart for the prescribed length of time, and without taking into consideration the cause of their so living apart. In arguing the question, the parties, and we at all times assume that the prescribed period of three consecutive years has elapsed, and that the trial judge has exercised his discretion in determining whether the best interests of society and the parties will be served by granting a divorce.
For the most part we agree with the appellant's interpretation of the statute, but appellant's statement of the law implies that the separation must result from the mutual consent of the parties. With that we cannot agree. The separation may as well result from the refusal of one of the parties to live with the other. Nor do we wish to be understood as approving by implication, or otherwise, the statement that the separation must be with the intent to bring the marriage to an end by a divorce.
The parties must live apart for the prescribed period as the consequence of a separation. The fact that one of the parties has been obliged by his business, or compelled by his government because of military duty, or, for some other reason, to live apart from his spouse for the required period of time does not entitle him to any relief under our statute. This circumstance does not result in the separation of the parties as we define it, unless such business or obligation to the government is undertaken with the avowed purpose of separating from a spouse. The verb 'to separate' means to part from each other. The status exists whenever the marital association is severed or when married persons intend to live apart because of their mutual purpose to do so, or because one of the parties, with or without the acquiescence of the other, intends to disrupt the marital relationship. One does not 'separate' from his spouse, in the sense of disrupting the marriage, by being called to duty in the armed forces, or by being called away on business.
We think this interpretation conforms with what has heretofore been expressed by this Court as the purpose and policy of the Statute. Herrick v. Herrick, 55 Nev. 59, 25 P.2d 378; George v. George, 56 Nev. 12, 41 P.2d 1059, 97 A.L.R. 983. It is also in accord with the only statement on the point which we have been able to find in a sister jurisdiction having a similar statute. Otis v. Bahan, 209 La. 1082, 26 So.2d 146, 166 A.L.R. 494.
This result has been implied by this Court in the case of George v. George, supra, 56 Nev. at page 17, 41 P.2d at page 1060, 97 A.L.R. 983, where the Court approved the following statement: It is manifest that there can be no reconciliation unless there has been disagreement and separation.
Appellant argues that if we accept her view of the statute, on the point just discussed,
then respondent's complaint should be dismissed. It is asserted that the proof shows that for the first year respondent and appellant were living apart, the respondent was away from home on duty with the United States Navy. The respondent contends, on the other hand, that the evidence shows that in the brief interval he was at home on leave, and before his departure for duty in the South Pacific, the parties 'separated', that respondent made it clear to appellant that he intended and contemplated a divorce.
If this is simply a matter of resolving a conflict of evidence on a fact, material to the issues, we would refer the appellant to the rule that conclusions reached as to the facts by the trial court upon conflicting testimony are conclusive upon this court on appeal. Cut-Rate Drug Co. v. Scott & Gilbert Co., 54 Nev. 407, 20 P.2d 651; Ward v Scheeline Banking & Trust Co., 54 Nev. 442, 22 P.2d 358; Butzbach v. Siri et al., 53 Nev. 453, 5 P.2d 533. The appellant insists, however, that on her motion to modify the findings of fact and conclusions of law, the trial court was specifically requested to make a finding as to...
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